Covers the disability legislation, the definition of disability, the obligations on an employer when employing a person with a disability, reasonable accommodation, the scope of employer's statutory duties, disproportionate burden and discrimination through association.
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Disability is widely defined in the Employment Equality Acts. Alcoholism, obsessive compulsive disorder, anorexia, depression and stress have all been held to be disabilities.
Obligations on employers
An employer is not obliged to recruit, train or promote a person who is not fully competent to carry out the duties of a particular job. A person with a disability is considered fully competent to undertake the duties attached to a job if the person could do the duties with the assistance of special treatment or facilities after being reasonably accommodated by the employer.
Reasonable accommodation necessitates the taking of appropriate measures by the employer. Appropriate measures are effective and practical measures carried out where needed in a particular case to adapt the employer’s place of business to the disability concerned. They include the adaptation of:
- premises and equipment
- patterns of working time
- the distribution of tasks
- the provision of training or integration resources
but do not include:
- any treatment, facility or thing that the person might ordinarily provide for themselves
Scope of employer's statutory duties
Section 16 of the Employment Equality Acts requires an employer to do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities. However, an employer is not required to retain an individual in a position if that individual is not fully competent and available to undertake the duties attached to that position.
The recent High Court case of Nano Nagle School v Marie Daly  IEHC 785 examined the scope of this statutory duty of reasonable accommodation on an employer. Ms Daly, a special needs assistant (SNA), had an accident resulting in her being paralysed from the waist down. She wished to return to work and a number of occupational therapist reports were obtained. Ultimately, the school determined that it could not accommodate her return to work on the basis that she was medically unfit to undertake the entirety of the duties associated with her role as an SNA.
The High Court noted that the definition of appropriate measures includes the adaptation of both patterns of working time and distribution of tasks. Accordingly, the adaptation of the distribution of tasks must also, where appropriate, include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted. On this basis, the High Court found that the school had failed to even consider a redistribution of Ms Daly's tasks as an SNA, rendering the school in breach of section 16 of the Employment Equality Acts. The case is a useful clarification on the scope of the duty to reasonably accommodate.
Token gestures not acceptable
A case from the Equality Tribunal (now the Workplace Relations Commission (WRC)) also reiterates the need for employers to be proactive in relation to the concept of reasonably accommodating a disabled employee. A Medical Secretary v HSE West (DEC-E2013-083) highlights that token gestures will not be accepted by the Tribunal as reasonable accommodation. In that case, an award of €70,000 (which was just shy of the maximum two years' award) was directed by the Tribunal which shows that the Tribunal will make awards designed to have a punitive and deterrent effect.
Accordingly, a prudent employer should be mindful to take steps to actively explore and consider any and all potential alternatives that may amount to appropriate measures (unless those measures would impose a disproportionate burden on the employer) so as to reasonably accommodate an employee with a disability.
Having determined what facilities and/or special treatment is necessary to make the person fully capable and competent, the employer then needs to consider whether the cost of these would impose more than a disproportionate burden on it.
Factors which may determine whether or not there is a disproportionate burden on the employer include:
- the financial and other costs
- the scale and financial resources of the employer’s business
- the possibility of public funding or other assistance
An employer should be able to demonstrate that it has investigated the public funding options open to it. Schemes on offer include:
- The Employer Retention Grant Scheme
- The Disability Awareness Training Support Scheme
- The Wage Subsidy Scheme
- Equipment Grants
Discrimination through association
Less favourable treatment of an employee due to their association with a disabled person, for example their disabled child, can constitute direct discrimination on the grounds of disability. The disabled person with whom the employee is associated does not have to be an employee of the organisation. Discrimination by association is covered under the Irish employment equality legislation.
Examples of less favourable treatment in such circumstances might include:
- not allowing an employee with a disabled child to return to the same job after her maternity leave
- not granting the employee the same flexibility with working arrangements as other employees with non-disabled children
- failure to deal with a formal grievance lodged against less favourable treatment